Legal privilege and the challenge of technology

Legal privilege, or attorney-client privilege, is a principle well established in common law countries, especially in Canada and the U.S. However, transnational business, new work methods and recent financial scandals have altered its importance. This three-article series will clarify where we stand today with respect to the protection of legal privilege by focusing on the following issues: Legal privilege in the wake of corporate scandals; legal privilege applied to modern litigation, with an emphasis on e-discovery; and the influence and impact of Europe’s views on legal privilege. Read part one here.

There was a time when maintaining legal privilege in attorney-client communications was somewhat easy: communications were either oral or written by exchanging letters directed to a specific recipient at a physical address. Today, the rapid evolution of technologies has largely modified the way attorneys and, more specifically, in-house counsel work: With our laptops and cellphones, we work from anywhere, turn on our computers at any time and send communications everywhere. Since preserving confidentiality has traditionally been upheld as the basic prerequisite to legal privilege, we have to wonder how it can be well-preserved in light of new technological practicalities.

First of all, frontiers between what falls within the workplace and what becomes private can be tenuous. Since email typically makes us less cautious about communications we send over the Internet, the risk of inadvertently waiving legal privilege has never been so high: the Dublin v. Montessoricase is a good illustration of that possibility. In this case, a school board member had sent an email to the school’s designated attorney to discuss certain labor issues, using the email account of her husband, who was not a board member himself. Though the communication was ultimately considered privileged in that case, the decision raises questions as to the spectrum of circumstances under which legal privilege can (easily) be waived.

Cloud computing is another interesting example of potential threat to legal privilege. Cloud computing consists of the use of computing resources delivered as a service over the Internet. Typically, most email services (Gmail, Yahoo! Mail, etc.) are now offered as cloud computing services, which makes one wonder whether information going through the cloud actually remains confidential. So far, the courts seem to apply a fairly reasonable standard: privilege will not be waived simply because communications were sent over the Web. What will really drive a court’s decision is whether the client could reasonably expect the communication to remain private, in light of the circumstances surrounding the exchange of electronic communications. This pragmatic approach should be applauded for two reasons. First, it shows that the courts are willing to consider the fact that technology evolves—for one thing, business globalization requires people to be able to communicate internationally, rapidly and efficiently. Second, the approach supports the idea that a client should not be sanctioned for something he has little to no control over.

Can privilege legitimately be deemed waived due to an inadvertent disclosure of information? At first, it seems that it should be the case. An individual is expected to be diligent regarding his own communications. His lack of diligence would therefore open the door to discovery. However, the complexity brought by the use of new technologies urges us to think again about what was communicated inadvertently and what was merely impossible to safeguard, even under the disclosing party’s best efforts.

According to the express waiver theory, privilege can only be waived by the client’s express consent. Though the principle seems to allow for more flexibility, it is reasonable to consider that when the client took judicious precautions to preserve the confidentiality of his communications with his lawyer, the circumstances surrounding the exchanges should not likely have an impact on the right to invoke the privileged character of the communication.

Advancing electronic technology means a constantly increasing volume of data which needs to be dealt with. An increasing amount of information undoubtedly multiplies the risks of inadvertent disclosure of privileged information. As such, privilege reviews now necessitate being even more meticulous, which in turn requires a greater investment in both human and financial resources.

Even with best efforts, preserving complete confidentiality of electronic information can almost be seen as a lost battle. Electronic files are mechanically duplicated on hard drives and on servers, and it can be difficult to delete every single copy of a communication, even with extensive computer knowledge.

In light of those difficulties, most courts adopt a balanced approach to examining the reasonableness of the precautions taken to prevent disclosure of information. Although it seems to be a fairer solution, it still requires a case-by-case analysis, as the circumstances will determine whether a client took reasonable precautions or not. Also, this solution leads to great uncertainty. As pointed out in an article published in the New York Law School Review, courts have sometimes reached dramatically opposing decisions in similar cases, sometimes considering that privilege had been waived, and sometimes declaring the exact opposite.

Courts have tried to overcome this issue by encouraging parties to enter into confidentiality agreements during the discovery phase. Yet, confidentiality agreements do not protect disclosure of information to third parties, or disclosure in the course of other litigation. The only way to extend the scope of a confidentiality agreement would be for the courts to issue non-waiver orders. However, those decisions can be regarded as a threat to the other judges’ action fields. Besides, in the U.S., non-waiver orders are valid only to the extent that they are “not a waiver in any other federal or state proceedings,” according to Federal Rule of Evidence 502 (d).

In the modern world, attorneys and their clients cannot be expected to stop using computing technologies as they exchange information. Though the courts are undoubtedly trying to follow and consider the pace of technology in their decisions, the need for a uniform course of action still exists, as technology continues to evolve and volumes of data continue to increase.